01/02/2019

James Phillips & John Yoo on Originalism and Free SpeechMichael Ramsey

Earlier this year, the Defense Department limited the right of the transgendered to serve in the military. Three federal courts blocked the policy for infringing the constitutional rights of the transgender individuals. One of the judges relied on the same clause of the Constitution as the cake maker who refused to bake a wedding cake for a gay marriage. The Supreme Court has invoked that same clause to defend the right to burn the American flag, dance in the nude, and make unlimited campaign contributions.

What is this constitutional catch-all? The free-speech clause.

The Supreme Court’s current law of free speech will perplex the ordinary American. After all, changing sex, making a cake, burning the flag, dancing nude, and contributing money have little in common, least of all speech.

The imperialistic expansion of free speech would not just surprise most 21st-century Americans; it would also make little sense to the 18th-century Americans who ratified the First Amendment. They would find it astounding that the courts have not just read speech to include many forms of conduct, but also have failed to establish any objective test for what constitutes speech. The Supreme Court appears to apply the perpetually malleable standard that emerged when it has sought to identify obscenity: It knows it when it sees it.